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Criminal Offenses

Abating Criminal Activity in Rental Housing

Background

It is a fundamental component of the residential landlord-tenant relationship that residents should be entitled to the safe and quiet enjoyment of their residential dwellings and not be exposed to unabated criminal activity. Except in those jurisdictions which have enacted enhanced rights for landlords to address criminal activity occurring upon project grounds swiftly and decisively, landlords are sometimes left with no accelerated remedies to the perpetuation of crime by tenants or their invitees. Landlords can be shouldered with a burden of proof effectively blocking action until the time of conviction, often with ongoing criminal activity continuing unabated, co-tenants living in fear and if they can afford to, relocating to other housing, to the detriment of the landlord and the relocating tenant(s).

Many jurisdictions have granted landlords accelerated remedies to address criminal drug related activities and set the standard of proof as being a preponderance of the evidence, allowing terminations of tenancies pre-conviction if the landlord can prove that it is more likely than not, that drug related activity was committed by a tenant or the tenant's invitees. This principle is nothing new and has been custom and practice in federally assisted housing for years, enabled by supporting lease addenda. Such laws do not quash the accused resident's due process rights. The accused tenant is entitled to his or her day in court to respond to the accusations. Many states have expanded the scope of criminal activity qualifying for fast track evictions to include criminal gang related activity and a few even further, to include such crimes as illegal discharge of a weapon, prostitution, infliction of bodily harm, threatening or intimidating as defined by statute, or other activities of like gravity.

Position

IREM believes that state and local governments with landlord-tenant laws should empower landlords to promptly and decisively address criminal activity on property grounds or in dwelling units by tenants and/or their invitees in a manner not in violation of the accused tenant's due process rights, when such conduct breaches the rights of co-tenants and/or puts them at potential risk. IREM endorses such statutes enveloping illegal drug and criminal gang related activity, unlawful discharge or brandishing of weapons, assault or threats of assault, and other crimes against persons or property of like magnitude occurring within the property's boundaries. IREM further endorses governments setting shortened summons periods, and a preponderance of the evidence as the landlord's burden of proof to prosecute an accelerated eviction under such conditions, with the accused given the right to present a defense and to "show cause" as to why the eviction should not proceed.

Enacting such laws will not completely eliminate all criminal activity in rental housing, but it would allow reasonable and necessary responses by landlords once crime does occur.

(6/99, confirmed 10/06, updated 3/11, 3/16)

Anti-Crime Legislation

Background

The National Crime Victimization Survey (NCVs) has been administered by the Bureau of Justice Statistics since 1972 in order to help create a national crime index. In 2014, the most recently published report, both violent and property crime rates continued a downward trend. Violent crimes include rape or sexual assault, aggravated assault, and simple assault. The NCVS is based on victim interviews, so the report cannot accurately measure homicides. In 2014, the overall violent crime victimizations per 1,000 persons age 12 or older was 20.1, with 1.1 rapes and sexual assaults, 2.5 robberies, 4.1 aggravated assaults, and 12.4 simple assaults.

For property managers, the most common crime is property crime, which includes burglary, theft, and motor vehicle theft. In 2014, for every 1,000 households 118.1 reported being the victim of a property crime including 23.1 burglaries, 90.8 thefts, and 4.1 motor vehicle thefts. Such crimes threaten the stability of entire families, businesses, and communities. In response to the frequent occurrence of property crimes, property managers continue to feel the pressure to ensure the security of residential, multifamily, commercial, industrial, and retail properties as well as tenant safety.

In recent years, the courts have determined that property managers are liable for some crimes committed on or around the properties they manage. Interpretations of landlord/tenant laws have been broadened, widening the scope of the definition of negligence on the part of owners and managers. Property managers need to be aware of today's climate of intensified legislative focus on tenants' rights and the proliferation of suits against property owners and managers. This is especially true in cases where crime and security are involved. Commercial tenants and residents should be aware that prevention of crime is also their responsibility. To combat crime many property managers are involved in Neighborhood Watch Programs and make use of websites providing detailed information about registered sex offenders and gang activity.

Position

Crime represents a serious threat to the management of any property. IREM believes property managers and owners have an obligation to provide an environment, as safe as reasonably possible, for a property's residents, customers, employees, guests, and commercial tenants. In addition, property managers are responsible to owners for the reasonable protection of the property's physical assets.

Therefore, in light of the societal problems caused by such crimes, IREM supports tough anti-crime measures which will help property managers to better address crime and reduce criminal activity on their properties and in their communities through their day to day activities and capacities as managers.

IREM supported many of the provisions contained in the Violent Crime Control and Law Enforcement Act of 1994, including:

  • Continued expansion of community policing in cities and towns across America through creation of Community Oriented Policing Services (COPS).
  • Creation of community boot camps, which give young people discipline, training, and a better chance to avoid a life of crime, and provide criminal drug addicts with drug rehabilitation treatment.
  • Increased penalties for gun offenses, imposition of federal death penalties for killing a federal law enforcement officer and other heinous crimes.
  • Increased penalties for various crimes against children and crimes in which minors are used, and creation of a national tracking system for those convicted of child abuse or criminal offenses against minors. The tracking issue is addressed in legislation referred to as Megan's Law.
  • Provides for increased penalties for possession of firearms and illegal drugs in or around schools.
  • Provides for enhanced controls on illegal entry into the United States.
  • Ensures swift and sure punishments once criminals have been found guilty of violent offenses.
  • Provides for new death penalty crimes and procedures and life imprisonment for three-time recidivists and creates new criminal penalties for gang violence.

The year before the Violent Crime Control and Law Enforcement Act of 1994 was enacted; the Brady Handgun Violence Prevention Act was signed into law. IREM supports keeping handguns out of the hands of criminals and therefore supported the Brady bill, which requires a five-day waiting period before the purchase of a handgun.

While Congress has made progress in passing legislation intending to prevent both children and adults from sexual abuse, IREM calls for tougher penalties for interstate stalking of women and for recidivist sex offenders, as well as stronger rights for crime victims.

IREM has long supported several anti-crime measures that have recently been in the spotlight. For instance, stiff penalties for providing material support to terrorists and terrorist-related activities.

There are two programs in particular IREM supports the state and/or federal government appropriation of funds. One, a system of regional prisons based on a state/federal partnership, which require state cost sharing and implementation of various measures to crack down on criminals. The other, grants to create federal "safe school" districts to help local school districts improve security.

In regards to the legal system, IREM supports the reform of habeas corpus procedures, raised standards for court appointed legal counsel, and limits to appeals.

(Adopted: 11/93. Updated: 6/98, 10/06, 10/10, 10/16)

Civil Asset Forfeiture

Background

Civil Asset Forfeiture laws are being used to combat drug dealing and in the past these laws have been revised. The old laws allowed the government to take your property without indictment, hearing or trial. They needed only show that there was 'probable cause' to think that an illegal activity occurred on the property, or the property was gained from the proceeds of an illegal act. To contest a seizure, a property owner had only 10-20 days to file a claim, and was required to pay $5,000 or 10% of the value of the property as bond. Further, if you could not afford an attorney, one was not being provided for you. These laws required a property owner to prove his/her innocence, while our country is founded on the principal of "innocent until proven guilty".

The Civil Asset Forfeiture Reform Act of 2000, introduced by Congressman Henry Hyde (R-IL), and signed into law by President Bill Clinton was designed to reform the aforementioned laws and enacted the following changes:

  • Places the burden of proof on the government by requiring them to show a "preponderance of the evidence";
  • Allows for the appointment of counsel to indigents;
  • Allows for the recovery of attorney’s fees
  • Ensures that property owners who took reasonable steps to prevent illegal activities on or with their property cannot be subject to forfeiture;
  • Eliminates the cost bond requirement from owners;
  • Gives a property owner up to 30 days to contest a forfeiture;
  • Allows innocent property owners the right to sue for negligence or loss of property due to forfeiture; and
  • Allows the property to be returned to the owner pending final disposition, if hardship would otherwise result.

Civil Asset Forfeiture has come under significant scrutiny recently as a result of several high-profile cases involving the law. Stipulations regarding where the assets end up, and how they can be recovered vary in different states. Recently, Texas placed tight restrictions on the law after abused were uncovered. However, Utah recently rolled back previous reforms.

Position

Illegal drugs are a most serious national problem. The Institute of Real Estate Management supports the swift, timely eviction of drug dealers. However, seizure of rental property where there may be an innocent owner constitutes a taking of private property without just compensation. IREM urges that the federal government, when enacting seizure procedures, require proof of owner complicity in the illegal drug activity before authorization for seizure of real property can be granted. The government should not be allowed to seize property without clear and convincing proof of that property owner's involvement in the crime. Further, those owners whose property is seized must be given time to contest the forfeiture and access to legal counsel. If found innocent, a property owner must have the ability to receive compensation for negligence or loss of property due to seizure.

(Adopted 11/01, confirmed 4/09, updated 2/14)

Combating Drugs in Rental Housing

Background

IREM realizes that the problem of illegal drug activity exists in subsidized and conventionally financed all rental properties. IREM realizes that failure to address the problem in all types of property will only serve to shift the problem from one type of property to another. IREM also believes that to significantly reduce the problems associated with illegal drug activity, it is necessary to have a coordinated effort between all rental housing owners and operators.

IREM recognizes that an increasing number of states have passed legislation legalizing to varying degrees the use and cultivation of medical marijuana. The use or cultivation of marijuana for any purpose is still in violation of federal law. This legal conflict can pose a complicated situation for property managers. (Please refer to our statement of policy on medical marijuana for more information).

Position

IREM recommends, on a local basis, individuals spearhead the coordination of a drug awareness and prevention program with other rental housing organizations, large multifamily property owners in their area, and local law enforcement, with the objective of resolving and preventing drug abuse and other illegal activity problems in subsidized and conventionally financed housing. IREM chapters are encouraged to lobby local governments to strengthen local laws to enable landlords to evict those residents as soon as possible.

(11/91, updated 4/07, 3/11, 9/14)

Drug Activity

Background

The problem of drug abuse, drug trafficking, and drug-related crime has found its way into every facet of day to day life, including all investment property such as residential, multifamily, commercial, industrial, and retail. Such activity threatens the stability of entire families, businesses and communities. As apprehension about drug activity has grown, governments, businesses and communities have become increasingly fervent in their efforts to eradicate illegal drug use and the societal problems associated with it. While every individual must share in the obligation to achieve this goal, it is important that specific responsibilities be borne only by those with the appropriate talents, skills, and resources to address them. Problems associated with illegal drug activity may not only result in damage or loss of property, but also involve mental and physical well-being, the possible loss of life, as well as the potential for increased liability of the owner or managing agent. Consequently, interference by untrained, ill-equipped and unqualified persons may worsen the problem and create additional hazards.

Recently, property managers nationwide have become more aware of the growing problem of methamphetamine labs in rental properties. After a lab has been shut down, a property is often still contaminated with high levels of hazardous chemicals. Long and short term health effects include liver and kidney damage, neurological problems and increased cancer risks, for people living in former lab sites.  This type of illegal activity is becoming increasingly problematic for commercial property owners and property managers. More and more states are passing legislation requiring property owners to disclose to real estate agents if the property was at one time used as a methamphetamine lab. Please see the IREM Statement of Policy, “Property Managers Combating Methamphetamine Laboratories: Prevention, Remediation, and Notification” that is specifically dedicated to this issue.

As of 2015, medical marijuana has been legalized in 23 states and the District of Columbia. In addition, recreational marijuana has been legalized in Colorado, Oregon, Washington, and Alaska. Under the Controlled Substances Act, marijuana has a Schedule 1 classification, and is still deemed illegal at the federal level.

Position

Members of IREM believe in a real estate manager making a reasonable effort, within his or her area of expertise, to protect tenants, owners, employees and property from the harmful effects of illegal drug activity. IREM feels that appropriate responsibility includes cooperation with law enforcement to the extent allowed by landlord-tenant laws and other state and local laws. IREM also believes that it is the manager's responsibility to familiarize law enforcement authorities with the managing agent's fiduciary responsibilities to property owners. IREM further believes that managers who act in good faith by documenting and notifying authorities of drug activity, and otherwise cooperating with authorities, do thereby protect an innocent owner's property from seizure by law enforcement authorities.

IREM recommends that real estate managers take the following steps to curb illegal drug activity:

Include reviews for criminal activity, as permitted by law, in background checks of prospective tenants and employees.

  • Define and address drug activity in lease agreements and company policy.
  • Advise tenants in writing that illegal drug activity will be considered a breach of lease and subject to all applicable penalties.
  • Advise the proper authorities of any known drug activity.
  • Document all action taken in regards to a property involved in drug activity.
  • Take the same precautions with employees as are necessary when dealing with tenants.

IREM supports legislation which protects and aids owners and real estate managers in responsible administration of anti-drug efforts. Laws that treat innocent owners and managers as accomplices are counter-productive, as are laws that demand managers to assume responsibility beyond the realm of management expertise.

IREM believes that real estate managers can best address and combat drug activity through their day to day activities and capacities as managers. It is not productive, and is dangerous, to burden managers with responsibilities better suited to law enforcement, counseling agencies, or governments.

(6/90, updated 4/06, 10/10, 4/15)

Federal Megan's Law

Background

The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Wetterling Act”) was passed as part of the Federal Violent Crime Control and Law Enforcement Act of 1994. The groundbreaking law setup requirements for states to create and implement a sex offender registry. The law requires any individual who is convicted of a criminal offense against a minor or who is convicted of a sexually violent offense to register their current address. In addition, any individual that is deemed a "sexual predator" is required to register their address.

In 1994, seven-year old Megan Kanka, from New Jersey, was sexually assaulted and murdered by a twice-convicted sex offender who had moved into a home across the street from the Kanka family. In response to this tragedy, New Jersey passed "Megan's Law," a statute that requires the registration of convicted sex offenders once they have left the correctional system, and community notification of the identity and location of "high-risk" sex offenders. County prosecutors determine whether released offenders fall into the low-, moderate-, or high-risk categories.

President Clinton signed a national Megan's Law on May 17, 1996 that echoed the New Jersey statute, requiring states to establish a community notification system. Megan’s Law is section (e) of the Wetterling Act. The objectives of this law are similar to New Jersey's: the continued monitoring and observation by local authorities of released sexual offenders. The federal law requires a state's law enforcement agency to collect and release this information when necessary to protect the public. The law does not impose any limitations on the standards and procedures that states may adopt for determining when public safety necessitates community notification.

When Megan’s Law was enacted real estate professionals voiced their apprehension. Specifically, concerns were raised regarding possible material disclosure, liability, and notification requirement issues 24 of property owners and managers under Megan's Law. While over a decade has passed since the law was enacted, property managers still feel they are exposed. Property managers face risks associated with a failure to provide adequate notice about the presence of convicted sex offenders who subsequently engage in criminal conduct, but then managers may be subjected to potential liabilities for violations of privacy laws protecting offenders and their families. Very few states have specified requirements for property managers to follow to comply with existing laws. Property managers should become familiar with state enforcement of Megan’s Law as well as state privacy law requirements.

The Wetterling Act was amended again in 1998, when its requirements were changed to include heightened registration requirements for sexually violent offenders, registration of federal and military offenders, registration of nonresident workers and students, and participation in the National Sex Offender Registry (NSOR). The registry may be accessed by visiting http://www.nsopr.gov/.

In July 2006, President Bush signed The Adam Walsh Child Protection and Safety Act into law. It acts as a supplement to Megan's Law with new registration requirements and a three-tier system for classifying sex offenders with regard to their risk level to the community. The Act also instructs each state to apply identical criteria for posting offender data on the Internet.

In July 2006, President Bush signed The Adam Walsh Child Protection and Safety Act into law. It acts as a supplement to Megan's Law with new registration requirements and a three-tier system for classifying sex offenders with regard to their risk level to the community. The Act also instructs each state to apply identical criteria for posting offender data on the Internet.

Position

The passage of a federal Megan's Law was the result of a tragic incident which should be treated with respect and sensitivity. IREM fully supports the federal government's policy to protect children from convicted sexual offenders and its operation of the National Sex Offender Public Registry as a means to reach its objective.

(11/96; updated 11/97, 10/06, 10/10, 9/14)

 

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